FEDERAL COURT OF AUSTRALIA

SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs

 [2006] FCA 378

MIGRATION LAW – No question of principle

SZGGS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR

NSD 2462 OF 2005

RARES J

15 MARCH 2006

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal is dismissed.

2.         The applicant pay the first respondent’s costs of the proceeding excluding any amount in respect of the appearance on 1 March 2006.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     For reasons expressed earlier today I set aside the orders which I made on 1 March 2006 because the applicant had given the court an explanation for his non attendance and I considered it in the interests of justice that he be allowed to be heard.  He has today appeared before me and has had the benefit of having read to him by the interpreter the reasons for judgment which I gave on 1 March 2006.  I asked him why the reasons which his Honour the trial judge gave for dismissing his application summarily on the basis of the Federal Magistrates Court rules disclosed an error of law.

2                     The applicant has sought to raise with me the fact that he was a person who feared his life would be in danger when he returned to his country of origin and that he was, in truth, a refugee.  He raised with me that, first, the Refugee Review Tribunal (‘the Tribunal’) and, secondly, the delegate of the first respondent had both committed errors in their assessment of his case.  I pointed out to the applicant that his present proceedings involved an application for leave to appeal from the Federal Magistrates Court's dismissal of his attempt to review the decision of the delegate of the first respondent for the reasons that I set out in [12], [13] and [14] of my judgment SZGGS v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224.

3                     I am satisfied that there is no substance in any basis on which the applicant seeks to challenge the delegate's decision.  No consequence would ensue in law if the applicant were permitted to bring such an appeal for it is the decision of the Tribunal on the application for review from that decision which is the act in the law which is legally operative and affects the applicant's current status as a person who is not entitled to a protection visa. 

4                     In my opinion there is no utility in the grant of an application for leave to appeal.  I adopt the reasons which I gave on 1 March 2006, before I had the benefit of hearing the applicant, as explaining the reasons in law why I am of opinion that there would be no sufficient doubt to warrant the grant of leave on the basis of the material before me today and I am not satisfied that there would be any injustice caused to the applicant, let alone a substantial injustice by my refusing him leave to appeal.

5                     The applicant says that because of his impecuniosity he ought not be ordered to pay costs of his failed application. I see no reason to depart from the ordinary rule of litigation that a party who is wholly unsuccessful ought pay the successful party's costs. The only exception I would make is that as I am satisfied that through no fault of his own the applicant was not able to appear at the hearing on 1 March 2006.  The order for costs that I make should not include the costs of that appearance. 

Associate:

Dated:    6 April 2006